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Senate Committee approves Melendez response

The Senate Courts of Justice Committee produced legislation, Senate Bill 5003, this afternoon that its members hope will provide at least an interim response to Melendez-Diaz v. Massachusetts.

The U.S. Supreme Court ruled, 5-4, in Melendez that prosecutors generally must present the analyst who prepared a report unless the defendant gets notice of the prosecution’s intent to rely on the report and waives the appearance of the technician.

The General Assembly will meet in special session tomorrow to address what legislators and prosecutors are describing as interim, immediate response to the case, with hope for a more considered solution in January.

House Majority Leader H. Morgan Griffith, R-Salem, attended the session and said afterward that he hopes that the House Courts of Justice Committee will adopt something similar tomorrow morning before the legislature convenes at noon.

Sen. Thomas K. Norment, R-Virginia Beach, emphasized the need for committee members to present a united front for their colleagues. The issues are “inside baseball” that few members outside the committees will understand, so that they will necessarily rely on the expertise from the courts committee members and staff.

The Senate committee worked off the latest draft of legislation developed by a subcommittee that worked with a task force composed of representatives of the Kaine administration, the attorney general’s office, Virginia State Police and the Department of Forensic Science.

The major stumbling blocks were provisions designed to assure that the results from breathalyzers are accurate without making the certification of their accuracy “testimonial,” in the language of Melendez-Diaz.

The case is an extension of a 2004 Supreme Court decisions that altered conception of what prosecutors and criminal defense attorneys usually put in the category of hearsay testimony. Instead of analysis of whether such statements are reliable, the focus is on whether they were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Because only three technicians maintain the state’s breathalyzers, a finding that the certificates are testimonial would put them in court so often that we would not have time to work on the equipment.

The committee agreed on a proposal from Sen. Roscoe Reynolds, D-Martinsville, that would exclude the certification if a defense attorney could show in pretrial proceedings that a machine was inaccurate, not properly maintained or inspected within the previous six months.

There was much less discussion about the centerpiece of the legislation: a procedure for having prosecutors notify defendants of their intent to present a sworn certificate from an analyst as evidence and allowing the defendant to demand the analyst’s appearance at trial.

By Alan Cooper

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